In the practice of combating criminalization in modern conditions, there are increasingly occurring acts that are considered formally criminal, but which differ from criminal illegal behavior in essence. As a result of this, today with the existence of imperfect legislation, issues related to defining the boundaries of an unlawful fact become especially important. In this regard, the notion of insignificance of an act is becoming increasingly relevant. Let's consider it in more detail.
The criminal legal significance of the insignificance of the act
At the moment, this phenomenon remains one of the most difficult categories for clarification. To date, the legislation does not contain a clear definition. The insignificance of the act in criminal law is explained from the standpoint of the paradoxical nature of the investigated phenomenon. In the norms there is no definition of its legal nature. There is no clarity in the interpretation of the factors that establish the insignificance of an act in criminal law. In addition, there are no explanations of the Plenum of the Armed Forces. Nevertheless, scientists in their studies turn to this category, considering a crime in criminal law, taking into account a number of criteria. They primarily include a threat to society. The study in this case undergoes negative consequences that are caused by illegal behavioral acts of the subject. Such a study is mainly aimed at identifying the problems of correlation of existing categories of misconduct. In particular, we are talking about administrative offenses and criminal offenses. Thus, this study is not focused on a thorough analysis of the phenomenon under consideration as an independent category.
Design specifics
First of all, it should be said that most theorists adhere to the term "insignificance of action." However, this wording in legal publications is subject to certain doubt. This is due to the specifics of the concept of "act". It can be considered both as a mandatory criterion for the objective part of the composition, and as a characteristic of illegal behavior in general. This fact introduces ambiguity into the terminology apparatus of the industry. In this regard, some criminal articles are becoming illogical. For example, Art. 8 of the Code. It established that the basis of criminal responsibility is the commission of an act that contains elements of a crime. As a rule, they do not pay attention to the inconsistency of this formulation. However, the act acts as a sign of the objective part of the crime. It follows that one characteristic of one component of the whole phenomenon cannot at the same time include all the properties of all its elements. It is proposed to solve this problem using two terms simultaneously in the same construction. Thus, the insignificance of the act and crime should be subject to consideration.
Behavior
According to some authors, the use in combination with the insignificance of the concept of activity seems incorrect. This is due to the fact that the latter term implies the activity of the subject. However, the behavior of a person, considered in the context of insignificance, can also be expressed passively. In this regard, it is preferable to use the word "behavior" in the design, since it is it that is subject to analysis during qualification.
Psychological aspect
In general psychology, the concept of “behavior” is interpreted as interaction with the environment, inherent in all living beings and mediated by external (motor) and mental (internal) activity. The first one also includes moments of stillness. Human behavior has natural prerequisites. Along with this, it has a socially determined basis. In the psychology of society, human behavior is defined as the transformation of an internal state into an action with respect to a significant object. It is expressed by an external observable system of actions, within the framework of which the motivation of the subject is realized. Behavior thus embraces both the active and passive forms of expression of will. This definition allows one to analyze human acts both from the inside and from the outside. Behavior covers the subject, object, objective and subjective sides. This is enough to understand the category in question. This is due to the fact that the object, when establishing the criteria for insignificance, is analyzed somewhat in isolation.
Regulatory practice
Despite the rather successful reflection of the essence of the category in question, the term “behavior” is not recognized as a criminal law definition. A different word is included in the law, which is part of the design. Insignificance is combined with the term "act". The latter is considered within the framework of practice as the result of both passive and active manifestations.
Legally established criteria
Signs of insignificance of an act can be found in Art. 14 of the Code. Part one establishes a definition of the main category of the industry. It refers to a socially dangerous guilty act prohibited by the Code under threat of punishment. In this case, the legislation considers the material-formal definition as a priority. In development of this aspect, in part two, some exceptions to the general rules are established. It defines acts that are not considered crimes. Moreover, formally they contain the criteria for any composition provided for in the Code. But they do not form a social threat due to the fact that there is a minor act. The Criminal Code of the Russian Federation in this case expresses the paradoxical behavior of the perpetrator. On the one hand, all the criteria of an unlawful act of a subject are present. From another perspective, there is no public danger.
Interpretation by A. N. Soloviev
The author proposes to state the norm in a slightly different interpretation. In particular, he believes that a crime will not be an insignificant act, behavior, although formally including a set of characteristics of a specific composition provided for in the Code, but due to the absence or a small level of threat, not reaching the level inherent in the crime. In this formulation, methodological errors are detected. First of all, in the interpretation of the causal relationship. By this definition, the impression is created that a small level or complete absence of a threat causes an insignificance of a crime, but not vice versa. In addition, it is unjustified to say that the behavior does not reach the established degree. The fact is that by its nature it is already socially dangerous. The same errors are revealed in the author's definition of the essence of the phenomenon under consideration. According to Soloviev, the insignificance of the offense is a socio-legal characteristic of a specific behavior. It reflects a functional aspect in which the level of threat of an act, including the characteristics of the composition provided for in the Code, does not reach the level inherent in illegal encroachments.
Other opinions
According to N. M. Yakimenko, the most successful is the wording, according to which an act that does not constitute a threat due to its insignificance, which, in turn, is determined taking into account the nature, method, object of the attack, content of motive, results, level, will not be considered a crime guilt, goals of the offender. A slightly different interpretation of Bazarova. In her opinion, an act that, although it contains formally the characteristics of the composition established in the Code, but because of a small social threat is insignificant, will not be considered a crime. A more expanded definition was given by Zavid and Borbat. In their opinion, the crime is not behavior that formally contains the criteria for any illegal act provided for in the Code, but because of its insignificance does not pose a great threat, that is, does not cause significant losses and does not pose a threat to their occurrence for the individual, society or the state.
Main characteristics
Summarizing the above, we can conclude that the criteria by which the insignificance of an act is determined are as follows:
- Formal wrongfulness. The behavior of the subject must contain the characteristics of any composition provided for in the Code. In this case, it is assumed not the identity of the criteria, but an external similarity.
- Little public danger. The category in question eliminates the threat to society in full. In fact, the insignificance of behavior allows him not to be considered illegal. Nevertheless, its results do occur. This, for example, may be minor damage to health, property and other recoverable losses.
- Lack of socially useful, excusable and neutral behavioral act. In contrast to the factors specified in Art. 8, acts are not characterized by utility. At the same time, one cannot talk about the acceptability or admissibility, the excusable, neutral nature of the behavior of the accused / suspect. It is not encouraged or encouraged by law, but not enough to hold the subject accountable.
- Rating category. The question of the insignificance of one or another behavioral act is a problem of fact. He is in the competence of the inquiry officer, court, investigator, prosecutor. In each case, an individually authorized person assesses damage and other factual circumstances. Based on their own legal consciousness, an appropriate conclusion is formulated. As a result, the behavior will be recognized as criminal or insignificant.
- Intentional character. Only with its presence can the insignificance of an act be recognized. In this case, intent can be both indirect and direct. However, in any case, it will be extremely specific. The non-specific nature of intent determines the qualification of behavior based on its results (damage assessment is carried out). It is also important to establish the direction of intent.
- Exclusion of crime. The insignificance of behavior does not imply a great threat to the manifestations of the will of the subject. Consequently, criminal wrongfulness is excluded. However, in this case only the factual nature of the illegal behavior is eliminated. Formally, it remains unlawful. The actual exclusion of criminal penalties of acts of the subject does not give grounds for equating insignificant behavior with criminal acts.
Given the above, we can formulate a generalized definition of the category. The insignificance of the act, therefore, is a property of formally unlawful, intentional, not distinguishing socially useful, excusable and neutral nature of behavior that does not pose a great threat. It is established by specially authorized entities in accordance with the circumstances of the event. Competent persons, in particular, examine the results of the behavior of the perpetrator (harm to health, property, reputation, etc.).
Recognition of immateriality conditions
Part 2 of Art. 14 of the Criminal Code develops and consolidates the social characteristics of the crime. In particular, it establishes that behavioral acts that formally include the criteria for the compositions set forth in the Code, but which do not pose a significant threat, do not fall into this category. To recognize immateriality, two conditions must be fulfilled simultaneously:
- Behavior should fall under criminal articles. In it, in this case, one can identify external criteria of illegality.
- There should be no public danger in the behavior of the subject. Usually it is absent due to the fact that losses from acts of the guilty person are meager.
Often certain damage, some asociality take place in insignificant unlawful behavior. But they do not achieve a criminal, but an immoral, disciplinary, civil, administrative degree of punishment. In this regard, if the case is not accepted for proceeding due to insignificance, the court or investigator shall consider the application of a different measure of responsibility.
Important point
It is impossible to recognize an insignificant act in which the presence of the characteristics of a crime is associated with the fact of loss, but it did not occur. Insignificance should be both subjective and objective. This means that the person wanted to commit an insignificant act, and not the event occurred due to circumstances beyond his control. In the event of a discrepancy between the actual and intent of the subject, the liability arises for an attempt on an unlawful action that he intended to perform. There is no insignificance in the case of the commission of an act with no specific intent. It is, in particular, about behavior in which the perpetrator foresaw and wished for the onset of some possible negative option for the victim. Responsibility will then come for the harm actually done. But in this case, the termination of the case due to insignificance will not follow.
Normative regulation
There are many provisions in society that govern the behavior of people, including the so-called technical requirements. They are not regulated by law, but can be included in the norms if they relate to public interests. In these cases, such provisions act as legal prohibitions. Depending on the industry that regulates the unlawful action, it may be civil, criminal and administrative. The latter category is similar to the second. However, administrative misconduct is characterized by a lower level of danger and, accordingly, a different nature of responsibility.
The specifics of the establishment
The insignificance of the act is determined not only in accordance with the criteria specified directly in Art. 14, part 2 of the Code. When it is established, the severity of subjective and objective characteristics of behavior as a whole is taken into account. Along with this, it should be remembered that the signs are closely connected with the immediate object of the crime. The more important it is, the less pronounced the characteristics will have. It should also be borne in mind that in behavioral acts, the compositions of which are formed according to the type of material, indicators of the degree of threat to society come to the fore when determining insignificance. In case of violation with a formal or truncated design, priority is given to its intensity. This is due to the fact that in the material composition the harm usually has a rather definite expression, that is, it is established. In formal compositions, he often has an indefinite character. This, in turn, creates obstacles to its establishment.
Encroachment circle
The legislation does not contain a list of acts that may be considered insignificant in certain conditions. In the general sense, the effect of part two of Art. Section 14 of the Code applies to all categories of misconduct. But in order to recognize an act, for example, formally falling under the characteristics of a serious crime, insignificant, in addition to not inflicting loss on the object of encroachment, additional factors are necessary. Such circumstances, in particular, include the insignificance of the development of the objective part (as a rule, this is only preparation for an illegal act), the degree of participation or guilt of the subject in the violation, and so on.
Conclusion
The insignificance of the act, therefore, means that the manifestations directed at the object are such that they concern it to a small extent and cannot cause serious losses. For example, this is a preparation for a clearly insignificant misconduct, the commission of any actions of a secondary nature. In general, the intent of the perpetrator should be directed directly to the implementation of a minor behavioral act. To establish this fact, various circumstances are investigated. The main factor in this case is the degree of danger of behavior for another person, society, state. When establishing immateriality, part 2 of Art. 14 of the Code. The proceedings are terminated due to the absence of a criminal offense in the act of the subject. . , - . , , . , , . , , . , . , . . . , .